This is a weblog that posts the synopses of all published opinions issued by the Court of Appeals and Court of Special Appeals of Maryland and synopses of all opinions that are openly available on the Internet from other courts in Maryland.

Friday, December 29, 2006

Appellant appealed the Circuit Court for Kent County's granting of summary judgment against her in an appeal of a denial of subsequent injury benefits before the Workers Compensation Commission.

In September 2002, Appellant had impleaded the Subsequent Injury Fund in her workers' compensation case, but settled her claims shortly thereafter against her employer and its carrier by an "Agreement of Final Compromise and Settlement." The Agreement included a "guide form" questionnaire which asked, inter alia, whether the Subsequent Injury Fund had potential liability. Appellant answered that question in the affirmative.

In her appeal, Appellant argued that

1) She had informed the Workers Compensation Commission in her Guide Form that she had a claim pending against the Subsequent Injury Fund;

2) She did not affirmatively or in any other way give up her rights against the Subsequent Injury Fund; and

3) It was incumbent upon the Workers Compensation Commission itself to "either insure that the Claimant/Appellant's right to proceed further against the [Subsequent Injury Fund] was preserved or to affirmatively inform her that by signing the proposed Agreement she would finally and forever give up her rights against the [Subsequent Injury Fund]."

The Court of Special Appeals noted that the Code, LE §9-722, precluded in plain language any action against the Subsequent Injury Fund after a settlement of claims, unless the Workers Compensation Commission ordered to the contrary, which did not occur, and did not require that a claimant expressly give up such rights to be effective. The Court rejected Appellant's interpretation of her response to the questionnaire regarding the Subsequent Injury Fund's possible liability, characterizing it not as a device for preserving a claim but as a mere tool to prevent unjust results against claimants.

Finding no facts in dispute, the Court sustained the judgment in favor of the Subsequent Injury Fund and denied Appellant's appeal.

Plaintiff brought suit against two police officers alleging battery, false arrest and imprisonment, gross negligence, negligence, and violation of Articles 24 and 26 of the Maryland Declaration of Rights. Defendants responded with a motion to dismiss where they argued that plaintiff had not complied with the notice requirement of the Local Government Tort Claims Act ("LGTCA"). Md. Cts. & Jud. Proc. Code §5-304. The court denied this motion, as well as defendants' later attempts, by motions for summary judgment and a post-trial motion, to have the case dismissed for lack of compliance with the LGTCA. The jury awarded compensatory damages after which both sides appealed.

Held:

Plaintiff did not strictly or substantially comply with the notice requirement under the LGTCA and the trial court abused its discretion when it determined that plaintiff demonstrated good cause to justify a waiver of the notice requirement.

Complaint filed with the Civilian Review Board alleging misconduct of police officers does not meet the statutory requirement of LGTCA because the complaint was not a claim for damages or a notice of intent to file suit.

Notice of an intention to file suit to the Maryland State Treasurer, the Comptroller of the Treasury, and Commissioner of the Baltimore County Police Department, filed outside of the 180 day time requirement for the filing of the notice did not meet the statutory notice requirement of LGTCA.

Where plaintiff filed a complaint of alleged police misconduct with the CRB within four days of the alleged misconduct death, but failed to give notice to the City Solicitor of a tort claim arising out of that misconduct within 180 days and did not provide a sufficient explanation for such failure, the trial judge's finding of good cause under the LGTCA falls outside of the broad limits of a trial court’s discretion.

Appellant appealed on three separate grounds his criminal conviction for murder with a handgun, the first such ground being the trial court's refusal of a voir dire question on the issue of juror prejudice or bias on the basis of the specific charge of murder with a handgun.

The Court of Special Appeals held that the trial court had not adequately addressed the issue of charge-specific bias by granting questions related to whether each juror:

1) had been the "victim of a weapon's charge" [sic] or a weapon's crime or had someone in the family who was accused of a weapon's crime; and

2) had any reason whatsoever . . . that would affect his or her ability to render a fair and impartial decision.

The Court of Special Appeals rejected arguments from the State that no charge-specific voir dire question should issue for a murder with a handgun charge in the manner required in prior Maryland decisions for charges involving certain sex offense or controlled dangerous substance charges. The Court of Special Appeals further noted that Appellant faced other lesser included homicide charges involving imperfect self-defense claims, and that the denied voir dire question was germane to those charges as well.

The Court of Special Appeals accordingly reversed the conviction and remanded the case for retrial on that ground, and did not address Appellant's other grounds.

Tuesday, December 26, 2006

Appellant sought to exclude evidence obtained pursuant to a search warrant and supporting documentation authorizing a search of the residence, car and person of both Appellant and an unidentified third party, on the grounds that the State did not provide Appellant an opportunity to inspect that warrant with respect to the third party. The trial court refused to exclude such evidence and the Court of Special Appeals upheld the trial court, noting that:

1) Appellant had no standing to challenge on constitutional or other ground the validity of warrant against the third party;

2) The State had an interest in maintaining the confidentiality of confidential informants, an interest conceded by the Appellant;

3) Appellant had not requested an in camera review of redacted version of the warrant materials for the purpose of obtaining of possible exculpatory evidence;

4) Appellant had not preserved the issue in prior proceedings of whether the application for the warrant for the unidentified person may have tainted the warrant application for the search of Appellant's person and property; and

5) The State did not call or intend to call the unidentified person as a witness against the Defendant, and therefore the material was not discoverable under Rule 4-263(c)(2).

Chief Judge Murphy noted in a brief concurring opinion that the case at bar did not present the issues of the use of the warrant material for the unidentified person for cross-examination purposes or for proving a tainted warrant application by the strategic misinformation or omissions by an affiant to produce the illusion of probable cause.

Police in Frederick County, Maryland informed the police of Martinsburg, West Virginia:

1) That a van driven by Appellant at the time of a stop in West Virginia fit the description of a vehicle at the scene of a double homicide on a Maryland street;

2) That Appellant's former boyfriend had advised Maryland authorities that Appellant had said that he (the former boyfriend) would never again see one of the victims, a five year-old; and

3) That Appellant's father in Martinsburg owned a vehicle fitting the approximate description of homicide scene van.

The Martinsburg police located a vehicle in Martinsburg fitting the description of the van at the homicide scene and confirmed as belonging to Appellant's father. When they observed the vehicle driving away, the Martinsburg police executed a stop of the vehicle, detained the vehicle on the street to obtain a search warrant for the contents of the vehicle pursuant to West Virginia law and procedure, and advised Appellant – the driver – after conducting a search of her person that she was free to leave during its detention.

The Court of Special Appeals upheld the lower court ruling that the Martinsburg police had ample probable cause to execute a stop of the van pending a search warrant application for its contents, based on the information provided by Maryland law enforcement.

Maryland law enforcement agents provided very substantial material assistance to the Martinsburg police in executing the search warrant in West Virginia. The lower court noted local direct supervision of the Maryland officers and the officers' role as the source of the information giving rise to probable cause to obtain the warrant itself. Rejecting Appellant's argument that the Maryland officers lacked territorial jurisdiction in West Virginia or probable cause as private citizens to participate in the execution of the search warrant, the Court of Special Appeals upheld the validity of the Maryland officers' participation in the search within the "color of [their] office."

Appellant claimed that the failure of West Virginia authorities to make a presentment of her to a magistrate for approximately eight hours constituted unnecessary delay and therefore an unlawful detention, invalidating as coerced a written statement that she made after being advised of her Miranda rights. The Court of Special Appeals held that the delay was not the result of deliberate collusion between Maryland and West Virginia to defeat Appellant's access to a magistrate and that within 9 hours of her arrest, Appellant did appear before a magistrate. Accordingly, the applicable Maryland statutes and rules governing deadlines for prompt presentment did not apply to Appellant's out-of-state arrest and the Court of Special Appeals accordingly upheld as not clearly erroneous the lower court's finding that Appellant's statement was not coerced and therefore was admissible.

Plaintiff in underlying case (Burger) brought suit for injuries he sustained when he drank beer that had been drawn through "tainted" lines at a bar. The plaintiff sued the party responsible for maintaining the lines (A.C. Beverage) and the owner of the bar (Max's). A.C. Beverage settled the case, and obtained a release for both Max's and itself. Nevertheless, Max's subsequently brought suit against A.C. Beverage seeking indemnification for the legal fees and other costs it had expended in defending the suit brought by Burger as well as in bringing the instant suit. Finally, Max's sought a declaratory judgment that A.C. Beverage would be responsible for any other injuries suffered by other patrons as a result of the tainted beer lines.

Held: Maryland recognizes the distinction between "active" and "passive" negligence. A party liable for "active" negligence cannot obtain tort indemnification regardless of whether the other party was also guilty of "active" negligence.

Maryland does recognize that, when an innocent party is forced into litigation with a third party by the wrongful conduct of another, the innocent party can recover fees and costs incurred in defending itself from the culpable party.

Despite general rule to the contrary, it is "highly doubtful" whether, and if so to what extent, Maryland would allow fees and costs as part of an indemnification claim based on the "active-passive" distinction. Generally, an alleged tortfeasor has no duty to defend another alleged tortfeasor.

Even assuming Maryland would allow costs and fees as compensable element under indemnity action based on "active-passive" distinction, they are not compensable under the facts of this case. When the implied indemnity claim is for counsel fees and costs, fees are unrecoverable when the tort plaintiff’s complaint alleged primary or active negligence, in whole or in part, against the alleged tortfeasor seeking indemnity, and the underlying case was dismissed prior to any factual findings.

Note: The Court explicitly confined its decision to the facts in this case and declined to issue any "general" rules. Thus, this decision is strictly limited to the facts of this case. For example, the outcome might have been different if the case had been tried and there were a finding of fact that Max's was only passively negligent.

The Court also declined to award the fees and costs of the present action. This would have been true even if the Court had allowed fees and expenses in the underlying case.

Finally, the Court determined that the request for declaratory judgment as to future actions did not present an actual and justiciable case in controversy. "One thing is clear, however: 'In a declaratory judgment proceeding, the court will not decide future rights in anticipation of an event which may never happen, but will wait until the event actually takes place, unless special circumstances appear which warrant an immediate decision.'"

Plaintiff filed a formal administrative complaint of discrimination with the EEOC alleging he was denied the position of Executive Housekeeping Officer due to racial discrimination and reprisal for having previously filed an equal employment opportunity complaint. Plaintiff received his EEOC decision on October 20, 2004 finding no discrimination and advising him that he had 90 days after receipt of the decision to file a civil action. Plaintiff affirmed receipt of the EEOC letter by October 24, 2004.

On February 17, 2005, the EEOC issued an errata letter to the plaintiff stating in its entirety:

The above captioned decision did not correctly list all of complainant's rights on appeal. A new decision with the corrected language, including complainant's right to request reconsideration, is attached. Please note that the applicable filing period for complainant to request reconsideration begins to run five days after receipt of this revision.

This correction in no way alters the substantive findings of the decision.

The decision attached to the errata notice was dated October 20, 2004, the same date as the original decision.

On January 27, 2005, 94 days after the initial limitations period began, the plaintiff filed his appeal. The civil action was filed in the U.S. District Court for the District of Columbia.

Defendant filed an a motion to dismiss for untimeliness, a motion to dismiss or transfer for improper venue or, in the alternative, for summary judgment pursuant to Rule 56. The U.S. District Court for the District of Columbia transferred the case on May 8, 2006 to the U.S. District Court for Maryland, stating that it was for the Maryland Court to decide whether plaintiff's case was timely filed.

Plaintiff argued that his complaint was timely filed because the EEOC reissued its final decision via the February 17, 2005, errata letter. However, the language the plaintiff relied on specified "the applicable filing period for complainant to request reconsideration begins to run five days after February 17[,2005]." However, the 90 day limitation period to file suit in federal court beings to run after receipt of a final EEOC decision.

The Court found that, had the plaintiff requested reconsideration, his limitations period to file an appeal in the district court would have restarted once the EEOC issued its decision on his request for reconsideration. Because the plaintiff did not exercise his right to request a reconsideration, the errata notice had no impact on the limitations period to file a judicial appeal. The appeal was thus filed untimely.

Equitable tolling is not appropriate here because the EEOC decision on October 20 adequately advised plaintiff of his right to bring suit in federal court. The reissued decision could not have misled plaintiff during the initial 90 day period because it was not issued until long after the period elapsed and, in fact, after plaintiff filed suit.

Sunday, December 24, 2006

Employment discrimination case alleging, inter alia, numerous violations of 42 U.S.C. §§2000e, et seq. and 42 U.S.C. §1981, as well as breach of contract and tort claims based on the law of the State of Maryland. Among the claims were a count asserting a cause of action for negligent supervision and a count claiming wrongful discharge, i.e., that the plaintiff's discharge violated Maryland public policy. The Court granted the defendant's motion to dismiss as to these claims.

In order to prove a cause of action for either negligent hiring, supervision or retention, a plaintiff must establish that her injury was caused by the tortious conduct of a coworker, that the employer knew or should have known by the exercise of diligence and reasonable care that the coworker was capable of inflicting harm of some type, that the employer failed to use proper care in selecting, supervising or retaining that employee, and that the employer's breach of its duty was the proximate cause of the Plaintiff's injuries. Because negligent supervision claims "existed at common law" in Maryland, such claims therefore "may only be predicated on common law causes of action." Claims for racial discrimination under 42 U.S.C. §1981 did not exist at common law. Thus, the plaintiff's claim for negligent supervision must fail.

To sustain a claim for wrongful discharge, the employee must show that (1) he was discharged; (2) the basis for his discharge violates some clear mandate of public policy; and (3) there is a nexus between the employee’s conduct and the employer's decision to fire the employee. See Wholey v. Sears Roebuck & Co., 803 A.2d 482, 489 (Md. 2002). Whether public policy considerations constitute a clear mandate of public policy is aquestion of law. Id. at 487 (citations omitted). Plaintiff's contention that she was improperly terminated for complaining that her supervisor failed to adequately address security concerns in connection with the conduct of a former employee does not jeopardize a clear mandate of public policy.

Saturday, December 23, 2006

Pro se action for employment discrimination by an employee of the Social Security Administration. Defendants' Motion to dismiss or, in the alternative, for summary judgment, granted.

Held:

Director of the Office of Personnel Management has only discretionary authority to seek review of a decision of the Merit Systems Protection Board (the "MSPB"), which discretion may only be exercised if the Director concludes that "the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive."

A challenge to a decision of the MSPB can only be brought in the United States Court of Appeals for the Federal Circuit and a United States District Court has no jurisdiction over such claims.

An adverse finding of the MSPB with respect to discrimination claims are required to be filed in a United States District Court within 30 days after the MSPB’s decision became final. She did not do so. If a review of an MSPB decision as to other claims is sought, that appeal must be filed in the United States Court of Appeals for the Federal Circuit within 60 days after the MSPB's decision became final. The United States District Court cannot review a decision of the United States Court of Appeals for the Federal Circuit.

Certain claims are barred if an employee does not appeal an adverse decision of the Social Security Administration to the MSPB.

Any claim with regard to the issuance of a Performance Assessment Plan to an employee fails because the issuance of the Plan is not a "ultimate employment decision" of the type necessary to give rise to a discrimination claim.

Friday, December 22, 2006

Action brought by the federal government and State of Maryland for alleged violations of the Clean Water Act, 33 U.S.C. §§1251, et seq., the Rivers and Harbors Act of 1899, 33 U.S.C. §§401, et seq., and Md. Code Ann. Envir. §16-202(a).

Landowner (Costello) was granted emergency permits by Maryland to rebuild an erosion control structure, called a revetment, that had been destroyed by Hurricane Isabel. One condition of the permits was that the new revetment must have the same location and dimensions as the previously existing revetment. Costello retained PCI and Mielke, an engineer employed by PCI, to prepare permit applications and to design and construct the new revetment.

In the process of constructing the revetment during those four months, the defendants used earth-moving equipment to discharge fill material, including rock, dirt, and sand, into Whitehall Creek without a permit. These discharges allegedly created an obstruction to the navigable waters of the United States. They also resulted in the filling of State wetlands without a license.

The U.S. and the State of Maryland filed a Complaint in this Court alleging that defendants violated the Clean Water Act ("CWA"), the Rivers and Harbors Act of 1899 ("RHA"), and the provisions of Maryland's Code concerning permits to fill wetlands ("Maryland Wetlands Statute"), because the new revetment did not comply with the conditions of the emergency permit.

The plaintiffs sought a variety of injunctive relief as well as civil penalties. The injunctive relief sought was to enjoin defendants "from discharging or causing the discharge of dredged or fill material or other pollutants into any waters of the United States except in compliance with the CWA and RHA" and "from placing any unauthorized structures or obstructions or performing any work waterward of the mean high water mark without first having obtained all requisite federal and state permits."

PCI and Mielke filed the a motion to dismiss. They argued that injunctive relief should not be imposed against them and raised two arguments in support of their position. First, they argued that because they have no property rights to the site, they could not carry out any injunctions issued by this Court. Second, they argue that the injunctions would be moot, because "the alleged actions of these Defendants have all been completed, and these Defendants play no role in any current (or potential) alleged 'discharge' of pollutants, dredged or fill material."

Held:

The fact that PCI and Mielke do not have property rights in the site does not preclude this Court from issuing injunctive relief against them or any defendant to ensure compliance with environmental statutes.

PCI's and Mielke's mootness argument was rejected because their "allegedly wrongful behavior" is not only "reasonably expected" to occur, but will undoubtedly occur until the structure is removed.

Defendant United States Army's motion to dismiss a non-tort monetary claim for lack of subject matter jurisdiction denied. Defendant suggested that transfer of the matter to the Court of Federal Claims would be inappropriate given the significant statute of limitations issues and motioned for dismissal by the District Court for lack of subject matter jurisdiction.

The Court transferred the action to the Court of Federal Claims pursuant to 28 U.S.C. §1631 based on the lack of subject matter jurisdiction and consequent impropriety for any District Court ruling on the statute of limitation issues.

Thursday, December 21, 2006

As of 4:17 P.M., December 21, 2006, the part of the Courts of Appeals that has the opinions delivered by the two courts is down.

Premature adjudication: The Court of Appeals website was not down. What occurred was that when one goes to the opinions page here, by default the radio button for the most recent year is clicked on. Apparently, that page was revised today to show 2007 as the most recent year and, of course, there are not yet any opinions for that year. Thus, when clicking on the "Submit" button, one received an error message.

Wednesday, December 20, 2006

The Court of Appeals' opinion in Evans v. State has generated a good deal of weblog commentary. We have collected links to much of that commentary at the end of our posted synopsis of the case. We will be adding links as we discover them and hope to add links to any posting if the case elicits comments on the blogosphere.

Of course, readers are encouraged to offer their own comments on any decision that we report on (which, of course, includes all decisions publicly available on the web) by posting comments at the end of any posting.

The Respondent was charged with violating a number of the Rules of Professional Conduct. Following a hearing, the Circuit Court for Baltimore County found that the Respondent did not respond to Bar Counsel's request for information in a timely manner and had withdrawn fees from her escrow account before they were earned. The hearing court rejected allegations that the Respondent had failed to communicate with her clients, charged an unreasonable fee, or fabricated her billing statements and did not actually perform the services for which she billed. The Respondent did not file any exceptions to the hearing court’s findings of fact or conclusions of law and, at argument, had expressly acknowledged her misconduct and made clear that she was not challenging that aspect of the case.

The Attorney Grievance Commission took exceptions to the hearing court's failure to find violations of Rules 1.15 (b) and 1.16 (d) because the Respondent had acknowledged that she failed to send copies of her billing statement to her clients in response to a letter from them and that she was aware of an error in billing her clients and owed them a refund of $257.00 that had not yet been made.

Because the lower court's findings also reflected that it found that a refund was in fact owed, the Court of Appeals sustained the exceptions. Finding that the misconduct that the Respondent had been found to have engaged in was quite serious but, also, that it was isolated and not likely to be repeated, the Court determined that a thirty-day suspension would protect the public interest and be appropriate.

Tuesday, December 19, 2006

Filed December 19, 2006—Opinion by Judge Alan Wilner, joined as to Nos. 107 and 124 by Judge Clayton Greene, dissent by Chief Judge Robert Bell, in which Judge Greene joined as to Parts C and D only.

The Court considered four appeals – Nos. 107, 122, 123, and 124 – which it consolidated. In Nos. 107 and 124, two substantive issues were raised: (1) Whether Evans was entitled to a new sentencing hearing because his attorneys at the 1992 re-sentencing hearing failed to investigate and present mitigating evidence relating to his background, thereby rendering their service, under principles enunciated in Wiggins v. Smith and Rompilla v. Beard, constitutionally deficient and prejudicial; and (2) Whether, under Miller-El v. Dretke, he was entitled to a new trial as to guilt or innocence because the State, in selecting a jury at the 1984 trial, exercised peremptory strikes in a racially discriminatory manner.

The issue in No. 123 was whether the Circuit Court for Baltimore County abused its discretion in denying, without affording discovery, Evans's third motion to reopen the 1995 post conviction proceeding in order to present the complaint that "selective prosecution by the Baltimore County State's Attorney's Office and systemic statewide racial and geographic discrimination rendered his sentence unconstitutional."

Appeal No. 122 arose from an action for injunctive relief filed in the Circuit Court for Baltimore City. Maryland Code, §3-905 of the Correctional Services Article requires that the manner of executing a sentence of death be by lethal injection. The Division of Correction (DOC) has adopted a comprehensive set of execution protocols, including a detailed description of the manner in which the lethal drugs are to be administered. Joined by three co-plaintiffs – the NAACP, the ACLU, and Maryland Citizens Against State Executions (CASE) – Evans contended that those aspects of the execution protocol were (1) inconsistent with the statutory requirements, and (2) in the nature of a regulation that was promulgated without compliance with the State Administrative Procedure Act. The appeal was from the Circuit Court's denial of a temporary injunction that would have restrained DOC from using its protocol.

The majority affirmed the Circuit Court on Appeal Nos. 107, 123, and 124, but found merit in the second aspect of Evans's complaint in No. 122, holding that Evans was not entitled to a new sentencing proceeding or to a new trial, but that the part of the DOC protocol that directs the manner of administering the lethal injection is ineffective until either (1) it is adopted as a regulation in accordance with the Administrative Procedure Act, or (2) the Legislature exempts it from the requirements of that Act.

Thus the majority held that those aspects of the EOM that direct the manner of executing the death sentence – the Lethal Injection Checklist – constitute regulations under SG §10-101(g) and, because they were not adopted in conformance with the requirements of the APA, are ineffective and may not be used until such time as they are properly adopted. The majority reversed the ruling of the Circuit Court for Baltimore City, remanding so that a final injunction could issue.

In dissent, Chief Judge Robert Bell did not disagree with the majority’s resolution of the "regulation" issue, but took strong exception to the majority's other holdings. In Part C, Judge Bell wrote that the merits of the selective prosecution claim were not yet on the table; but that Evans had satisfied the threshold inquiry into whether discovery on that issue was warranted. In Part D, Judge Bell agreed with the majority’s disposition of the "regulation" issue, but further concluded that the DOC procedure does not comport with, and is in fact violative of the statute. Judge Greene joined in Parts C and D only of the dissent.

Preliminary injunctions are designed as a preventative and protective remedy for actions which may occur in the future. The purpose of interlocutory injunctions is to maintain the status quo between parties engaged in litigation pending the resolution of such litigation. If the granting of a preliminary injunction would fail to prevent a future act or maintain the status quo between the parties, then it should not be granted.

If the granting of an interlocutory injunction satisfies the above criteria, then the court will examine four factors: (1) the likelihood that the plaintiff will succeed on the merits, (2) the balance of convenience, (3) whether the plaintiff will suffer irreparable injury unless the injunction is granted, and (4) the public interest. See Department of Transportation v. Armacost, 299 Md. 392, 404-05, 474 A.2d 191, 197 (1984). The party seeking the injunction has the burden of proving the facts necessary to support each factor and must prove all four factors in order to receive preliminary relief. Should the plaintiff fail to prove even one of the factors, an interlocutory injunction will not be granted.

Furthermore, as a precursor to analyzing the four factors, courts must balance the likelihood of irreparable harm to the plaintiff against the likelihood of irreparable harm to the defendant. Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 195 (4th Cir. 1977); Lerner v. Lerner, 306 Md. 771, 783-84, 511 A.2d 501, 507 (1986). If this "balance of hardships" weighs in favor of the plaintiff, then the likelihood of success on the merits factor is replaced with a more lenient standard: whether "the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation." Blackwelder, 550 F.2d at 195 (citations omitted) (quotations omitted).

The plaintiff entered into an agreement with the defendant , effective, March 21, 2004 – prior to filing the complaint and initiating the pending controversy. Therefore, the 2004 agreement was freely negotiated before the complaint was filed, at which time the status of the parties was peaceable and non-contested. It is uncontroverted that the 2004 agreement would terminate by its own freely negotiated terms on December 25, 2004. That date that was before the date the lawsuit was filed. The termination had also been established prior to the date that the plaintiff alleged the defendant had committed the illegal actions that gave rise to the case.

Under these circumstances, the plaintiff failed to establish its entitlement to a preliminary injunction.

Monday, December 18, 2006

Upon disciplinary referral from the Court of Appeals, the Circuit Court for Baltimore City found the following facts to be true:

1. Respondent agreed to represent the complainant, an interested party in a unfiled decedent's estate, and took a retainer for such representation. The decedent had domiciled in Montgomery County, but Respondent agreed to pursue a claim of the decedent's estate in Anne Arundel County regarding decedent's real estate claims there involving a disputed debt and lien. Respondent failed to open an estate in Anne Arundel County, and ignored several notices from the Registrar of Wills and the Orphans' Court of that county including an adverse petition for judicial probate.

2. Respondent represented to the complainant that he was able to proceed in Maryland or the District of Columbia without assistance of other counsel. Respondent did proceed to file a civil action in the District of Columbia with an attorney barred in that jurisdiction, but Respondent was not a barred attorney in the District of Columbia at any time relevant.

3. Respondent made a further false representation on his pro hac vice motion to the Superior Court of the District of Columbia, stating that he had no open disciplinary actions in Maryland when the Attorney Grievance Commission has opened and notified Respondent of a then-unresolved disciplinary proceeding approximately two months prior to his statement. Due to service of process issues, the civil action co-filed by Respondent was dismissed twice without prejudice, but Respondent falsely represented to the complainant on one such dismissal that the case had merely been continued, not dismissed.

4. The Orphans' Court for Anne Arundel County proceeded to transfer the related probate case to the Orphans' Court for Montgomery County, but Respondent failed to make many required estate filings in that court, prompting a threat of discharge of the complainant as personal representative of the decedent's estate and her discharge of Respondent as her counsel.

5. During the period of Respondent's failure to act, the size of a disputed debt claim against the decedent's estate rose from approximately $50,000,00 to $57,000.00 and continued to grow with interest thereafter.

The Circuit Court for Baltimore City found violations of Rules 1.1 (competence), 1.3 (diligence) (two such violations), 1.4 (a) (duty to keep client informed) and (b) (duty to explain for informed decision-making), 1.5(a) (fees commensurate with services) and 8.4 (misconduct and conduct prejudicial to the administration of justice.)

Neither party took subsequent exception to these findings of fact or of Rule violations by the Circuit Court. The Court of Appeals accordingly accepted them as established for purposes of imposing a sanction. Respondent had already been suspended indefinitely by the Court of Appeals for the conduct giving rise to the disciplinary action identified in paragraph 3 above. In light of that aggravating factor and weighing the totality of Respondent's dishonest and unprofessional conduct in this matter, the Court of Appeals disbarred Respondent.

Friday, December 15, 2006

Where the issue of non-dischargeability is presented by application of 11 U.S.C. §523(a)(2),(4), (6), and (15) and for cases commenced prior to October 17, 2005, the federal court having jurisdiction over the bankruptcy case has exclusive jurisdiction to determine the dischargeability issue. The exclusive jurisdiction arises by operation of the effect of 11 U.S.C. §523(c) and Federal Rule of Bankruptcy Procedure 4007. If a complaint is not timely filed, the debt is discharged. After the closing of the bankruptcy case, the state court having jurisdiction over an action for the affected debt, has concurrent jurisdiction to determine whether or not that debt was dischargeable, or non-dischargeable and consequently was, or was not discharged by the discharge injunction granted in the bankruptcy case.

A debtor, faced with a post-discharge collection action by a creditor can seek to remove that state action to the bankruptcy court pursuant to 28 U.S.C. §1452 and/or commence an adversary proceeding before the bankruptcy court seeking a restraining order against the creditor on the basis that the actions being taken by the creditor violate the discharge injunction. If the debtor does neither but instead permits the state court to determine the dischargeability other than pursuant to 11 U.S.C. §523(a)(2), (4), (6), and for pre-BAPCPA cases (15), the question may be preclusively determined by final order of the state court.

Chapter 13 Trustee appealed orders of the bankruptcy court denying his motions to dismiss and confirming the plans of the debtors. Where each debtor obtained a discharge in bankruptcy within a certain interval of filing and as a result, each is ineligible to obtain a discharge, the sole issue is whether 11 U.S.C. §1328(f), which prohibits a second discharge under certain circumstances, also prohibits the filing of a chapter 13 petition.

In rejecting the Trustee's contention that the ineligibility to obtain a discharge should mean that the debtor is also ineligible to file the petition at all and that the filing is, ipso facto, in bad faith the court held:

While there are some limitations on that general grant of eligibility, see, e.g., §109(g), there is no prohibition based on the inability to be granted a discharge or the fact that the debtor is a serial filer. Indeed, the Supreme Court long ago found that serial filing was not necessarily barred.

Congress has expressly prohibited various forms of serial filings. The absence of a like prohibition on serial filings of Chapter 7 and Chapter 13 petitions, combined with the evident care with which Congress fashioned these express prohibitions, shows that Congress did not intend categorically to foreclose the benefit of Chapter 13 reorganization to a debtor who previously has filed for Chapter 7 relief.

Thursday, December 14, 2006

Respondent, who was 75 and in practice for 48 years in Maryland and for shorter times in D.C. and California, had very little civil trial experience and virtually no experience in family law and custody matters. Nonetheless, in 2002 he undertook the representation of the complainant in a custody dispute with her ex-husband, to set aside a consent custody order entered the previous year, which had been based in part on the diagnosis of complainant as suffering bipolar disorder with paranoid tendencies.

In early 2003, after meeting with the complainant over fifty times and spending many hours of general background research, but without consulting the relevant Maryland rules, statutes or case law, respondent filed a petition, supported by the complainant's affidavit, declarations of persons who knew the complainant, and a memorandum of law raising the theory that the diagnosis was false, the licensed psychologist who made the diagnosis was incompetent to do so, and that the psychiatric community was engaged in "pseudo science." For these services, respondent billed the complainant for $25,000, and later in 2003 filed suit against complainant for his unpaid fees.

Respondent had been the subject of earlier disciplinary proceedings, in California in 1990 and, as a result of the California proceedings, in Maryland in 1993.

Upon consideration of these matters, the hearing court found support for violation of Rules 1.1, Competence, 1.5(a), Fees, 3.1, Meritorius Claims and Contentions, and 8.4(d), Misconduct, but did not violate Rules 1.3, Diligence, or 1.4(b), Communication and found some mitigating circumstances.

Based on the hearing court's findings, the petitioner filed its recommendation for sanction, indefinite suspension, and noted its exception to the hearing court's failure to find that the respondent acted in bad faith and with intent to defraud the complainant, and was not in fact contrite. The respondent failed to formally file an exception, but did file to urge that a lesser sanction be applied due to the unique circumstances presented in this matter.

The Court of Appeals overruled petitioner's exception, finding ample evidence to support the findings of fact made by the hearing court, and the conclusions drawn from those findings of fact. Nonetheless, the sanction of indefinite suspension was upheld, since the conduct, while not rising to the level that would require disbarment, was quite serious and could not be condoned, and left the issue of the efficacy of proposed "safeguards" until consideration of whether to readmit the respondent is raised later.

Petitioner, J.P. Delphey Limited Partnership, sought review of the judgment of the Court of Special Appeals affirming the condemnation of Delphey's property by the City of Frederick and concluding that no ordinance specific to the property was required by Section 2(b)(24) of Article 23A of the Maryland Code (1957, 2001 Repl. Vol.) in order for the City to acquire the property by condemnation. The Court of Appeals affirmed the judgment of the Court of Special Appeals and held that the Aldermen's vote to condemn the Delphey property constituted a proper exercise of the authority vested in that legislative body by Section 2(b)(24) of the Article 23A and Section 173 of the City of Frederick Charter, and that no ordinance, or legislative act, specific to the property was required. The Court further determined that the Aldermen did not violate Section 10-508 (a)(3) of the Open Meetings Act, which provides an exception to the general prohibitions of Section 8 of Article 23A, when they voted to condemn the Delphey property in a closed session.

Fourth Amendment, motion to suppress evidence. Defendant contended that a gun found as a result of a pursuit by Baltimore City detectives should not be admitted into evidence because it was the fruit of an illegal seizure under the Fourth Amendment.

The defendant, when stopped by police officers, began to run. He was then taken into custody. After he was taken into custody, one of the police officers reported that he saw the defendant throw something away during the chase. Further investigation resulted in the recovery of a handgun. The defendant claimed that (i) the officers acted without probable cause when taking him into custody, (ii) that the seizure of the gun was the result of that arrest and was thus the fruit of an illegal seizure.

The Court found that because defendant ran from the detectives, he did not submit to police authority and, therefore, there was no seizure under the Fourth Amendment. Since there was no seizure, the gun Defendant dropped during the pursuit was abandoned property and would be admitted as evidence.

In a legal malpractice case, the Court of Special Appeals, in reviewing a grant of a motion for summary judgment in favor of the defendant, ordered that the record on appeal be supplemented by material from the record in another case. Ultimately, the Court of Special Appeals did not consider this material in reaching its decision.

Held: There is no requirement that an appellate court must consider portions of the record from a prior case that it (i.e., the appellate court) has ordered to be obtained as a supplement to the record in a subsequent case. The Court of Special Appeals did not abuse its discretion by doing exactly that in this case. In so holding, the Court of Appeals affirmed the judgment of the Court of Special Appeals that: (1) the Circuit Court for Wicomico County erred as a matter of law in finding that the plaintiff's claim was barred by the statute of limitations; (2) the Circuit Court for Wicomico County, in a summary judgment context, did not abuse its discretion in denying the defendant's motion based on judicial estoppel grounds; and (3) upon remand the defendant is free to assert the claims of limitations, judicial estoppel, and any other defenses.

With respect to the statute of limitations defense, the Court of Appeals discussed the discovery rule in the context of a claim with respect to a contract executed by the plaintiff where part of the plaintiff's claim involves alleged negligence of the attorney with respect to the attorney's advice in the course of the negotiation and preparation of the contract.

Patent-owner Akzenta filed suit against Unilin for infringing its patent. Akzenta later amended its complaint to allege infringement of a newly-issued continuation of the first patent. In answering the amended complaint, Defendant Unilin asserted unenforcability due to inequitable conduct as to the second patent and, allegedly for the first time, also as to the first patent. In its inequitable conduct defense, Unilin argued that Akzenta prosecuted the patents without disclosing information suggesting prior use, which would bear on patentability to the PTO.

Akzenta submitted both patents at issue to the PTO for reexamination and moved to stay the litigation pending reexamination of the patents. It also moved to strike portions of Unilin's answer to Akzenta's amended complaint.

The Court denied the stay based on a likelihood of prejudice to Unilin, given that no other factors weighed heavily in favor of or against granting a stay and Akzenta failed to demonstrate that it would suffer any hardship without one. Although Unilin should have sought leave of court to amend the answer as it did, the Court declined to strike any part of the amended answer given the close relationship between the two patents at issue and the Court’s broad discretion in granting leave to amend.

Wednesday, December 13, 2006

Evidence; Criminal Procedure, Cross-examination of the defendant about his or her testimony in an unrelated criminal case: A defendant who testifies in an unrelated case does not thereby submit to a discovery deposition. Nor does a defendant’s unrelated case testimony "open the door" to cross-examination questions that are of consequence only to the defendant's upcoming case, and have nothing to do with the direct examination testimony.

If, however, a criminal defendant who is awaiting trial and represented by counsel elects to testify on behalf of another criminal defendant in an unrelated case, the State may cross-examine the defendant about his or her unrelated case testimony, as long as the record shows that

the judge presiding in the unrelated case had advised the defendant of the possibility that the State may be able to use the defendant's testimony during the defendant’s trial; and

the unrelated case testimony was given by the defendant either on (a) direct examination, or (b) cross-examination that was, pursuant to Md. Rule 5-611(a), "limited to the subject matter of the direct examination."

To recover for tortious interference with business relationships, the plaintiff must prove that defendant’s conduct was independently wrongful or unlawful, i.e., that the defendant's conduct in interfering with contract or business relations was accomplished through "improper means.” Independent "improper means," included "violence or intimidation, defamation, injurious falsehood or other fraud, violation of the criminal law, and the institution or threat of groundless civil suits or criminal prosecutions in bad faith."

In a free speech/retaliation claim, a burden rests on the plaintiff to show that the speech involved a matter of "public concern," that the plaintiff was deprived of a valuable benefit, and that but for the protected speech, the government would not have taken the retaliatory action. It is not a matter of "public concern" when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances.

Transfers and reassignments that do not constitute firings or suspensions typically have not been held to implicate a property interest to which, with respect to government employees, due process rights attach.

To establish a prima facie case of discriminatorily motivated demotion, a plaintiff must prove: 1) that she is a member of a protected class, 2) that she was demoted, 3) that at the time of the demotion she was performing her job at a level that met her employer's legitimate expectations, and 4) "ordinarily," that she was replaced by someone of comparable qualifications who was not a member of the protected class.

A plaintiff's unsubstantiated beliefs that defendant treated her unfairly and that race and national origin formed the basis of her termination are not sufficient to rebut the defendant's proof of a nondiscriminatory reason.

Petitioner, Seth M. Goldberg, M.D., sought review of the Court of Special Appeals' judgment determining that the Circuit Court for Montgomery County erred in submitting an informed consent instruction to the jury because physicians in Maryland do not have a duty to inform their patients that there are other, more experienced surgeons in the region, but that the error did not warrant a new trial on the issue of negligence. Dr. Goldberg also sought review of the intermediate appellate court's conclusion that the cross-examination questions regarding one of the D.C. snipers asked of one of Dr. Goldberg's expert witnesses was so prejudicial as to warrant a new trial on the sole issue of damages.

The Court of Appeals reversed the judgment of the Court of Special Appeals, concluding that, although the line of questioning about the sniper case was improper, its prejudicial effects did not transcend the trial judge's curative measures so as to warrant a new trial. The Court also determined that the trial judge had properly instructed the jury on the issue of informed consent because whether a reasonable person, in Mr. Boone's position, would have deemed the fact that there were other, more experienced surgeons in the region as material to the decision whether to risk having the revisionary mastoidectomy undertaken by Dr. Goldberg was a factual issue for the jury to determine.

This is the second of two cases involving early voting in Maryland. In the first case, Roskelly v. Lamone, the Court of Appeals affirmed the judgment of the Circuit Court for Anne Arundel County, which had dismissed the action because it was not timely filed. In this case, the Court we addressed the constitutionality of early voting, probing whether the acts establishing the process are inconsistent with, and, thus, in derogation of, the Maryland Constitution.

The Court determined that the acts authorizing Maryland Code (2003, 2006 Cum. Supp.) §10-301.1 are inconsistent with and in derogation of certain provisions of the Maryland Constitution, in particular, Article XV, §7, and Article I, §1, and are not constitutionally supported by Article I, §3; therefore, these acts are unconstitutional and void.

Motion to deny class certification status is premature when class certification had not yet been requested. Sovereign immunity is available for claims for monetary damages, but not equitable relief. Governmental immunity is available for common law claims. Preliminary denial of motion to certify question to state court when there is a purely federal question pending as to whether the statute is unconstitutional as applied.

Monday, December 11, 2006

The U.S. District Court for the District of Maryland entered a monetary sanction against Respondent for his failure to comply with orders of discovery in a a civil case, said failures resulting in the entry of summary judgment against Respondent's client. Respondent failed to pay the monetary sanction or to explain that failure, was ordered to show cause for such failure and, upon his failure to appear, was held in contempt and subsequently arrested. A disciplinary action was instituted in the Disciplinary Committee of the U.S. District Court and Respondent was disbarred by the U.S. District Court.

Upon receiving notice of the federal disbarment, the Attorney Grievance Commission filed reciprocal disciplinary charges against Respondent for violating the Maryland Rules of Professional Conduct, and those charges were consolidated with two unrelated disciplinary cases against Respondent in this State relating, respectively, to Respondent's failure to file or preserve a timely claim for professional negligence against a nursing home and Respondent's failure to proceed with the filing of an expungement petition, in both such cases failing to communicate with his clients as well. Respondent failed to cooperate with Bar Counsel regarding its investigation of these complaints.

The Court of Appeals upheld the findings and rulings of the Circuit Court for Baltimore County regarding Maryland's rules on reciprocal discipline and regarding the facts as proven, and found violations of Rules 1.3 (Diligence), 1.4 (Communication), 1.16 (Declining or terminating representation) and 8.1 (Bar Admission and Disciplinary Matters). For these violations and for the aggravating factor of the federal disbarment, the Court of Appeals disbarred Respondent.

A submission containing more than one third, but less than all, of the full number of signatures necessary to complete a referendum petition, submitted to the Secretary of State before June 1 for the purpose of extending the time for filing the signatures to complete the referendum petition within the meaning and contemplation of the Election Law Article, is still a petition. Accordingly, the State Board Administrator is required to make a validity determination of that petition, and judicial review must be sought within ten days as outlined by statute.

Saturday, December 9, 2006

The plaintiff has failed to present affirmative evidence to sustain his allegations that: (1) the defendants breached the standard of care in structuring the plaintiff's initial investment in the a corporation; (2) the defendants were negligent in charging the plaintiff attorney's fees to pursue certain meritless claims for the plaintiff; or (3) the defendants against whom these claims were brought would have settled the claims against them but for the defendant attorney's alleged negligent conduct. Without evidence to sustain the allegations underlying the plaintiff's claims, grant of summary judgment in favor of the defendants is appropriate.

Friday, December 8, 2006

The Respondent, after being engaged to provide legal services, failed to act with reasonable diligence and promptness in carrying out that representation, thereby violating Maryland Rule of Professional Conduct (MPRC) 1.3. After filing the divorce complaint for the client, the Respondent failed to keep her client reasonably informed about the status of the representation and did not respond to reasonable requests for information, thereby violating MRPC 1.4(a). The Respondent also violated MRPC 1.4(b) by not explaining to her client the dismissal of her complaint to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Furthermore, the Respondent has clearly abandoned her law practice and her clients as she has been, and still currently is, decertified for her failure to pay her assessment to the Client Protection Fund and has not attempted to get reinstated.

The Respondent further violated MRPC 8.1(b) when she knowingly failed to respond to lawful demands for information from the office of Bar Counsel.

Taken in its totality, the Respondent's conduct was prejudicial to the administration of justice and therefore violated MRPC 8.4 (d).

Whether the Court of Special Appeals erred in holding that petitioner's nickname, "Sat Dog," which was displayed on a television monitor above a bowling lane, was not hearsay. Even if the court erred with respect to the evidentiary issue, the error was harmless beyond a reasonable doubt. Thus, the Court did not reach the hearsay issue.

Criminal Law – Proceedings – Appeals – Effect of New Trial – Mootness – Where a criminal defendant, after conviction and sentence, files a timely notice of appeal to the Court of Special Appeals, but is granted a new trial before the appellate opinion is filed, the appellate court may be required to dismiss the appeal. The trial court retains fundamental jurisdiction to grant a new trial, despite the pending appeal, but the effect of granting a new trial, ordinarily, renders the appeal moot. In the instant case, the Court of Special Appeals erred, as a matter of law, in failing to dismiss the appeal where the subject matter of the appeal was moot and that court was unable to review the propriety of the order granting the new trial.

Motion for the appointment of a receiver. Plaintiffs sought this relief due to the recent resignations of six of the seven independent directors of Telos and the failure of efforts to restructure Telos in order to satisfy the obligations allegedly owed to plaintiffs by virtue of their ownership of certain publicly traded securities.

The Court denied relief holding that the plaintiffs failed to show specific evidence of fraud, oppression or illegal conduct to permit the Court to appoint a receiver. The Court rejected consideration of the alternative equitable remedy suggested by the plaintiffs based upon a change in outside directors or a management dispute over strategic plans.

In Montgomery County, once a special exception is obtained for a particular use of a property and the property is thereafter utilized for that use, a prior nonconforming use that is identical to that for which the special exception is granted is terminated or the six month period of abandonment begins to run. §59-G-4.14 of the Montgomery County Zoning Ordinance. Once the special exception is granted the use becomes "permitted" and, if not sooner terminated, after six months the nonconforming use is abandoned and may not be revived unless additional relief is granted under other provisions of the Zoning Ordinance, i.e., variances, etc.

The Fourth Amendment to the United States Constitution; New York v. Belton, 453 U.S. 454, 455–56, 101 S. Ct. 2860, 2861–62 (1981); Thornton v. U.S., 541 U.S. 615, 617-18, 124 S. Ct. 2127, 2129 (2004); Wyoming v. Houghton, 526 U.S. 295, 305-06, 119 S. Ct. 1297, 143 L. ed. 2d 408 (1999); Although Maryland has yet to extend the Belton/Thornton bright–line specifically to the search of items belonging to a passenger situated several feet from the vehicle arguably outside of the Chimel [v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)] reach, who is neither under arrest or suspected of criminal activity at the time of the search and who neither poses a threat to the officer's safety or is capable of destroying evidence, in light of the holding in Thornton, that "Belton allows police to search the passenger compartment of a vehicle incident to a lawful custodial arrest of both 'occupants' and 'recent occupants,'" and "In any event, while an arrestee's status as a "recent occupant" may turn on his temporal or spatial relationship to the car at the time of the arrest and search, it certainly does not turn on whether he was inside or outside the car at the moment that the officer first initiated contact with him," the motions court properly denied appellant's motion to dismiss evidence of cocaine retrieved from twelve individualized baggies within small recyclable grocery bag located in appellant's coat that was on the rear passenger side seat of vehicle.

Thursday, December 7, 2006

This is a reciprocal discipline case governed by Maryland Rule 16-773. In April, 2006, Bar Counsel, having learned that, in November, 2005, the District of Columbia Court of Appeals had found that respondent, John Midlen, Jr., violated certain D.C. Rules of Professional Conduct (DCRPC) and had suspended him from the practice of law for a period of eighteen months, filed a petition seeking reciprocal discipline in Maryland. The petition, filed pursuant to Maryland Rule 16-773(b), alleged that, based on the findings of the D.C. Court, Midlen had violated Maryland Rules of Professional Conduct (MRPC) 1.15 (safekeeping property in which a client has an interest), 1.16 (requirements upon termination of representation), and 8.4(a), (c), and (d) (violating other MRPC; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that is prejudicial to administration of justice).

In accordance with Rule 16-773(c), the Court of Appeals issued an order directing the parties to show cause why, based on any of the grounds set forth in Rule 16-773(e), corresponding discipline should not be imposed.

Certified questions from the U.S. District Court for the District of Maryland. The questions directed to the Court were as follows:

In a case where a medical laboratory receives a specimen from a Maryland physician and erroneously interprets the specimen in another State, causing injury in Maryland the Maryland residents, should this court follow the "standard of care" exception in the Restatement (First) of Conflicts of Law §380(2) and apply the substantive law of the State where the erroneous interpretation took place?

Does denying Maryland residents the right to bring a wrongful birth action by applying North Carolina law violate the public policy of the State of Maryland?

Where a laboratory analyzes a mother’s amniocentesis specimen and the results are provided to the mother’s physician, but relied upon by both parents, does the laboratory have a sufficient relationship with the father that gives rise to a duty of care?

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We believe that it is in the best interest of both the public and the legal system for the courts to operate with the maximum possible transparency. To that end, we provide synoposes of all opinions publicly available on the Internet of the Court of Appeals and Court of Special Appeals of Maryland, the U.S. District Court and Bankruptcy Court for the District of Maryland, the Maryland Tax Court, and any Circuit Court in Maryland.

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